S.F. Ali

Early life and education

On 19 September 1886, Justice Sir Saiyid Fazl Ali was born in an affluent family of lawyers in Varanasi. He had told the scholar George H. Gadbois that he was a seventh generation lawyer.   

He completed his schooling at the London Mission School, Benaras. Subsequently, he obtained a Bachelor of Arts degree from the Muir Central College, Prayagraj (formerly Allahabad) in 1907. Justice Ali then moved to England to read the law at Middle Temple, London. He was called to the Bar in England in 1912, where he met Justice Vivian Bose. Justice Bose would join Justice Ali as a Supreme Court judge in its formative years. 

Career as an Advocate

After returning to India, Justice Ali started practising as a barrister in the district courts of Chapra, Bihar. Gadbois has noted that it was unusual for a barrister to practise at the district level, especially in criminal law. Ali would come to be counted among the few judges of the Supreme Court who had a background in criminal law. 

In 1924, after 12 years of practising in Chapra, he moved his practice to the Patna High Court, which had been established in 1916.  In 1928, he was appointed as a judge in the Patna High Court. 

Career as a judge

In 1938, Justice Ali was appointed as the Acting Chief Justice of the Patna High Court. He was knighted for his services to the Empire  in 1941. He also received an honorary LLD from Aligarh Muslim University. In 1943, he was appointed  the Permanent Chief Justice of the High Court. He was also the fifth Chief Justice of the Patna High Court, and the first Indian. 

Justice Ali was 56 at that time and was due to retire in September 1946.  His tenure was extended by one year by the Central Government. Justice Ali, however, retired from the Patna High Court in October 1946. In April 1946, he was appointed as a chairman of the Royal Indian Navy Mutiny Inquiry Commission. The commission was set up to look into the pan-India revolt of the Indian navy against the colonial regime after the Second World War. The Bihar government sought his expertise to settle several industrial disputes in Jamshedpur.

On 9 June 1947, he was elevated to the Federal Court, which was the highest court in colonial India. This was made possible after Sir Muhammed Zafrullah Khan stepped down from the Federal Court because he opted for Pakistan. Justice Ali was one of the senior-most High Court judges at that time. He was also among the last batch of judges who were elevated to the Federal Court before the British left India. In September 1947, he was appointed a member of the Calcutta Disturbances Inquiry Commission, which had been set up to investigate the communal violence in Calcutta in the wake of Partition. That same month, he attended the United Nations General Assembly’s second session as one of five Indian delegates. 

After the Supreme Court of India was established, he became one of the first eight judges appointed to it. According to Gadbois, Justice Ali was the obvious choice for elevation to the new Supreme Court considering his religious background and “sterling credentials.”  He was among the three judges in the Court who’d been educated as a barrister in London.

Over a three-year tenure, Justice Ali authored 56 judgements and was a part of 113 benches.

Twenty-four percent of Justice Ali’s judgements came in criminal matters. This is followed by constitutional law (17%), family law (10%), property law (10%), and direct taxation (7%).  

He became the first judge to retire on 19 September 1951. This is the second time where his tenure was extended. This time it was Chief Justice H.J. Kania who asked him to briefly return under Article 128. Article 128 of the Constitution allows the Chief Justice of India to recall a retired judge back to the Supreme Court after taking the consent of the President. 

His tenure at the Supreme Court finally ended on 30 May 1952. 

Notable Judgements

Justice Ali was part of the six-judge in A.K. Gopalan v State of Madras (1950), also known as the Preventive Detention judgement. It was reportedly the first writ of habeas corpus filed in the new Supreme Court. The Communist leader A.K. Gopalan had filed the writ against his detention under the Madras Preventive Detention Act, 1950, which he claimed was in violation of ‘procedure established by law’ under Article 21. Gopalan argued that the Madras Act was unconstitutional and inconsistent with the newly enacted Constitution. According to Gopalan, his preventive detention restricted his freedom of movement under Article 19(1)(d). Further, it deprived his personal liberty under Article 21. 

The majority held that the laws cannot be tested on the basis of Article 19(1)(d) as it deals with a distinct subject matter. Further, they observed that there was no relation between personal liberty under Article 21 and Article 19(1)(d), stating that the right to movement is entirely different from the meaning of personal liberty under Article 21. Justice Ali famously dissented, holding that Article 19(1)(d), which guaranteed the freedom of movement, was restricted by the preventive detention law. 

In Romesh Thapar v State of Madras (1950), a 5:1 majority struck down Section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949 which banned the entry and circulation of the journal ‘Crossroads’ in Madras. The majority held that the “security of state” as a reasonable restriction cannot be expanded to include “public safety and public order” under Article 19(2). Justice Ali dissented in this judgement as well. He held that peace and tranquillity is a part of maintaining the security of the State. 

In Brij Bhushan v State of Delhi (1950), another significant judgement on press freedom, the Supreme Court struck down Section 7 of the East Punjab Public Safety Act, 1949. The provision aimed to scrutinise publications “relating to a particular subject” before their publication. The Court held that the provision promoted pre-censorship, which was a restriction on the liberty of the press. The question of public safety as a restriction came up in this case as well. Justice Ali dissented on this specific issue and reiterated his holding in Romesh Thapar that “public disorder” would undermine the “security of the State”. 

To tide over the consequences of the judgements in Romesh Thapar and Brij Bhushan, Parliament enacted the First Constitutional Amendment, which specifically inserted the words “public order” as a restriction to the freedom of speech and expression. 

Post-retirement career 

Days before his retirement, Justice Ali was made the Governor of Orissa. At that time, this generated some controversy considering that Justice Ali was still a sitting judge of the Supreme Court at the time of his appointment.

Justice Ali stepped down from this role in 1954 at the request of Jawaharlal Nehru, who wished him to chair the State Reorganisation Commission. In May 1956, he then took on the role of Governor of Assam. He was in that office until his death by cancer, at the age of 72, on 22 August 1959.